CORTEZ-ORTIZ et al v. CITY OF JERSEY CITY
OPINION. Signed by Judge Jose L. Linares on 10/5/2016. (JB, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JASMINE CORTEZ-ORTIZ, et al.,
CIVIL ACTION NO. 16-23 19 (JLL)
CITY OF JERSEY CITY, et al.,
LINARES, District Judge
The plaintiffs in this action are employees of the defendant City of Jersey City,
who allege that they have been improperly classified under the New Jersey Civil Service
Law (hereinafter, “NJCSL”) as temporary seasonal employees for at least nine years.
The plaintiffs allege in the amended complaint that, as a result of that classification, they
have been improperly deprived of the proper salaries, pension benefits, and medical
benefits provided to full-time salaried employees. (See dkt.
Currently pending is a motion filed by the defendants
City of Jersey City;
Steven Fulop in his official capacity as the mayor of the City of Jersey City; and Robert
Kakoleski in his official capacity as the business administrator of the City of Jersey City
(collectively hereinafter, “Municipal Defendants”). The Municipal Defendants move:
(1) to dismiss the claim asserted under the Federal Fair Labor Standards Act (hereinafter,
The parties have not advised the Court about the kinds ofjobs that the plaintiffs hold in
their employment with the City of Jersey City.
“FLSA”), and the claim asserted under the Federal Racketeer Influenced and Corrupt
Organizations Act (hereinafter, “RICO”) pursuant to Federal Rule of Civil Procedure
(hereinafter, “Rule”) 1 2(b)(6); and (2) for the Court to decline supplemental jurisdiction
over the remaining claims brought pursuant to state law. (See dkt. 11; dkt. 11-1; dkt. 112; dkt. 18.)2 The motion is opposed by the plaintiffs.
The Court presumes that the parties are familiar with the factual context and the
procedural history of the action. The Court will resolve the motion upon a review of the
papers and without oral argument. See L.Civ.R. 78.1(b). For the following reasons, the
Court will grant the motion.
ARGUMENTS & ANALYSIS
It is not necessary for the Court to restate the standard for resolving a motion made
pursuant to Rule l2(b)(6). See Green v. Coleman, 575 Fed.Appx. 44, 46 (3d Cir. 2014)
(setting forth standard; citing Ashcrofi v. Igbal, 556 U.S. 662 (2009)); Mariotti v.
Mariotti Bldg. Prods., Inc., 714 F.3d 761, 764—65 (3d Cir. 2013) (setting forth standard;
citing Bell AtI. Corp. v. Twoinbly, 550 U.S. 544 (2007)); Am. Corporate Soc’y v. Valley
Forge Ins. Co., 424 Fed.Appx. 86, 88—89 (3d Cir. 2011) (setting forth standard; citing
Igbal and Twombly); Fowler v. UPMC Shadyside, 578 F.3d 203, 209—12 (3d Cir. 2009)
(setting forth standard; citing Igbal and Twombly). The Court has abided by that
standard in resolving the motion.
This Court will refer to the documents by the docket entry numbers and the page
numbers imposed by the Electronic Case Filing System.
There is now “a nearly overwhelming weight of authority” that holds that civil
RICO claims cannot be maintained against municipalities and municipal officers. The
Choice Is Yours, Inc. v. The Choice Is Yours, No. 14-1804, 2015 WL 5584302, at *10
(E.D. Pa. Sept. 22, 201 5); see Tengood v. City of Philadelphia, 529 Fed.Appx. 204, 209
(3d Cir. 2013); Heinemeyer v. Twp. of Scotch Plains, 198 Fed.Appx. 254, 256 (3d Cir.
2006); Kadonsky v. New Jersey, 188 Fed.Appx. 81, 84—85 (3d Cir. 2006); Genty v.
Resolution Trust Corp., 937 F.2d 899, 914 (3d Cir. 1991); Manuel v. City of
Philadelphia, No. 10-2690, 2010 WL 3566767, at *8 (E.D. Pa. Sept. 14, 2010). The
plaintiffs’ RICO claim against the Municipal Defendants is barred. Therefore, the Court
will grant the part of the motion seeking dismissal of the RICO claim.
Even if the plaintiffs had named Fulop and Kakoleski in their individual capacities
which the plaintiffs did not do
the plaintiffs’ RICO claim asserted against them
would be barred nonetheless. First, the plaintiffs fail to assert any plausible details
concerning the dates, times, or locations of any of the alleged predicate acts of mail fraud,
wire fraud, and embezzlement engaged in by those individual defendants. Instead, the
plaintiffs offer nothing but pure speculation at best. (See, e.g., dkt. 7 at 12 (alleging
without further detail that “[rn]any of the above criminal acts violate 18 U.S.C.
(mail fraud), 18 U.S.C.
1343 (wire fraud), and 18 U.S.C.
664 (theft or embezzlement
from employee benefit plan)”).) See Dmz v. Boro of Manasguan, No. 05-4088, 2006
WL 1098029, at *45 (D.N.J. Apr. 3, 2006). Second, the claims against the individual
defendants would be barred by the applicable four-year statute of limitations, because the
plaintiffs knew or should have known about the conduct of those defendants for more
than four years, i.e., at least 9 years. See Bullock v. Klein, 341 Fed.Appx. 812, 816 (3d
Cir. 2009) (concerning RICO claims that were asserted against municipal entities and
officers); Kadonsky, 188 Fed.Appx. at 85—86 (concerning same). Third, the plaintiffs fail
to allege how Fulop and Kakoleski conducted themselves as an enterprise that existed
independently of their efforts to govern the City of Jersey City, or how the alleged
criminal enterprise affected interstate commerce. See Washington v. Twp. of Hillside
City Council, No. 06-3102, 2008 WL 2683360, at *15 (D.N.J. July 2,2008); see also
Indus. Design Serv. Co. v. Upper Gwynedd Twp., No. 91-7621, 1993 WL 19756, at *7
(E.D. Pa. Jan. 27, 1993) (stating that the allegations concerning a so-called criminal
enterprise consisting of the manager and the code enforcement officer for a township
“can hardly infer any link between this enterprise and interstate or foreign commerce”).
The FLSA claim also cannot be maintained because the plaintiffs merely allege
that the Municipal Defendants have failed to designate them as salaried employees. The
plaintiffs do not allege that they have been paid less than the statutory minimum wages or
the statutory overtime wages for the hours that they have actually worked under their
current employment designations. See Davis v. Abington Mem’l Hosp., 765 F.3d 236,
242—43 (3d Cir. 2014) (stating that a FLSA claim must allege that a plaintiff worked 40
hours in a given week, as well as worked some uncompensated time in excess of the 40
hours); Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir.
2013) (stating same); Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc., 723 F.3d 192,
201 (2d Cir. 2013) (stating the FLSA does not contemplate a claim for wages other than
minimum wages or overtime wages); see also 29 U.S.C.
§ 207(a)(1) (requiring that an
employee who works in excess of forty hours must be compensated for time and a half
for the excess hours). The Court also notes that the claim appears to run afoul of the
statute of limitations for FLSA claims, because the plaintiffs’ claim accrued at least nine
years ago. See 29 U.S.C.
(setting forth a two-year limitations period for claims
in general, and a three-year limitations period for willful violations). Therefore, the
Court will grant the part of the motion seeking dismissal of the FL$A claim asserted
against the Municipal Defendants.
State Law Claims
The Court will utilize the discretion to decline to exercise supplemental
jurisdiction over the remaining state law claims, and will grant leave to the plaintiffs to
recommence the state law claims in state court. See 28 U.S.C.
1367(c)(3) (stating a
district court may decline to exercise supplemental jurisdiction over a state law claim if
that court has disposed of all claims over which there was original jurisdiction); Miller v.
Pocono Ranch Lands Prop. Owners Ass’n Inc., 557 Fed.Appx. 141, 145 n.2 (3d Cir.
2014) (affirming a district court order that dismissed a RICO claim with prejudice and
declined to exercise supplemental jurisdiction over the related state law claims).
Therefore, the part of the motion requesting that the Court decline supplemental
jurisdiction over the remaining state law claims will be granted.
For the foregoing reasons, the Court will: (1) grant the motion; (2) dismiss the
FLSA claim and the RICO claim with prejudice; and (3) dismiss the remaining state law
claims without prejudice, and grant leave to the plaintiffs to recommence the state law
claims in state court. The Court will enter an appropriate order and judgment.3
nited States District Judge
Although raised by the defendants for the first time in their reply brief, the Court is
concerned that the plaintiffs had the opportunity under the NJC$L to take advantage of certain
administrative remedies before the New Jersey Civil Service Commission or a similar state entity
prior to bringing all of these claims in federal court. (See dkt. 18 at 7.) See, e.g., N.J. Admin.
Code Title 4A, Chapter 3 (concerning civil service classifications, services, and compensation).
The Court is also concerned that the plaintiffs had access to a grievance procedure under the
collective bargaining agreement between the City of Jersey City and the union representing its
employees before bringing these claims. As a result, the amended complaint may have been
subject to dismissal pursuant to the Younger abstention doctrine.
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